Citation Nr: 0711959
Decision Date: 04/24/07 Archive Date: 05/01/07
DOCKET NO. 01-03 605A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for lumbosacral strain.
2. Entitlement to a higher initial evaluation for headaches,
dizziness, and memory loss, residuals of head injury,
currently evaluated as 10 percent disabling.
3. Entitlement to a higher initial evaluation for seizures,
residuals of head injury, currently evaluated as 60 percent
disabling.
4. Entitlement to an increased rating for fracture, left
pubic bone, currently evaluated as 20 percent disabling.
5. Entitlement to an effective date prior to September 1,
2000 for a 20 percent evaluation for fracture, left pubic
bone.
6. Entitlement to an effective date prior to December 5,
1994 for the grant of service connection for seizures,
residuals of head injury.
7. Entitlement to an effective date prior to December 5,
1994 for the grant of service connection for headaches,
dizziness, and memory loss, residuals of head injury.
8. Entitlement to an effective date prior to December 5,
1994 for a total disability rating for compensation based
upon individual unemployability (TDIU).
9. Entitlement to an effective date prior to December 5,
1994 for Chapter 35 benefits.
10. Whether new and material evidence has been received to
reopen the claim for service connection for dysthymic
disorder, claimed as depression.
REPRESENTATION
Appellant represented by: John F. Cameron, Attorney at
Law
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran served on active duty from July 1957 to February
1963.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating determinations of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama.
The issue of service connection for dysthymic claimed as
depression has been recharacterized as whether new and
material evidence has been received to reopen the claim for
service connection for dysthymia claimed as depression
because there was a prior Board decision denying service
connection for a psychiatric disorder in May 1989. The issue
is addressed in the REMAND portion of the decision below and
is REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC.
The RO characterized three of the issues as whether there was
clear and unmistakable error (CUE) in assigning September 1,
2000 as the effective date for a 20 percent rating for
fracture, left pubic bone; and in assigning December 5, 1994
as the effective date for TDIU and Chapter 35 benefits.
However, the appeals of the effective date issues were from
the rating decisions which initially assigned the effective
dates. Accordingly, the issues have been rephrased to
reflect what has been appealed. See Hazan v. Gober, 10 Vet.
App. 511 (1997); Flash v. Brown, 8 Vet. App. 332 (1995) (a
reopened claim and clear and unmistakable error are
different, mutually exclusive routes to the goal of
determining an effective date).
FINDINGS OF FACT
1. Low back disability including lumbosacral strain or
arthritis of the lumbosacral spine was not manifest in
service or within one year of service and is unrelated to
service.
2. The veteran does not have a diagnosis of multi-infarct
dementia.
3. The veteran does not have an average of at least 1 major
seizures in 4 months over the past year nor minor seizures
averaging 9 or more times per week.
4. The veteran's left pubic bone fracture produces no more
than moderate left hip or knee disability.
5. The veteran did not appeal the November 1994 denial of a
20 percent rating for residuals, left pubic fracture; the
next claim for an increase was not received prior to
September 1, 2000; and it is not factually ascertainable that
there was an increase in the severity of the disability
within 1 year before September 1, 2000.
6. The veteran did not appeal the October 1979 denial of
service connection for concussion or the April 1994 denial of
service connection for seizures, and the next claims for
service connection for seizure and other residuals of a head
injury were not received prior to December 5, 1994.
7. After the October 1979 denial of service connection for
concussion or the April 1994 denial of service connection for
residuals of head injury, there was no claim for TDIU before
the next claim, for service connection, was received on
December 5, 1994.
8. The veteran did not meet the criteria for eligibility to
Chapter 35 benefits prior to December 5, 1994.
CONCLUSIONS OF LAW
1. A low back disability was not incurred or aggravated in
service, and arthritis of the lumbosacral spine may not be
presumed to have been incurred or aggravated in service. 38
U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002);
38 C.F.R. §§ 3.303, 3.307, 3.309 (2006).
2. The criteria for an initial disability rating in excess
of 10 percent for headaches, dizziness, and memory loss,
residuals of head injury, have not been met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. §§ 3.321, Part 4, Diagnostic
Code 8045-9304 (2006).
3. The criteria for an initial disability rating in excess
of 60 percent for seizures, residuals of head injury, have
not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. §§ 3.321, Part 4, Diagnostic Code 8045-8911 (2006).
4. The criteria for a disability rating in excess of 20
percent for fracture, left pubic bone, have not been met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, Part 4,
Diagnostic Code 5010-5255 (2006).
5. The criteria for an effective date prior to September 1,
2000 for a 20 percent rating for fracture, left pubic bone,
have not been met. 38 U.S.C.A. § 5110 (West 2002);
38 C.F.R. § 3.400 (2006).
6. The criteria for an effective date prior to December 5,
1994 for service connection for seizures, residuals of head
injury, have not been met. 38 U.S.C.A. § 5110 (West 2002);
38 C.F.R. § 3.400 (2006).
7. The criteria for an effective date prior to December 5,
1994 for service connection for headaches, dizziness, and
memory loss, residuals of head injury, have not been met.
38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2006).
8. The criteria for an effective date prior to December 5,
1994 for a TDIU have not been met. 38 U.S.C.A. § 5110 (West
2002); 38 C.F.R. § 3.400 (2006).
9. The criteria for an effective date prior to December 5,
1994 for Chapter 35 benefits eligibility have not been met.
38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection, lumbosacral strain
The veteran appealed the RO's September 2001 denial of
service connection for lumbosacral strain.
Service connection may be granted for disability arising from
disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1131. Service connection may be
established for any disease diagnosed after discharge when
all of the evidence including that pertinent to service
establishes that it was incurred in service.
38 C.F.R. § 3.303.
Arthritis may be presumed to have been incurred in service if
it is manifest to a degree of 10 percent within one year of
discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137
(West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006).
In this case, the evidence does not show any low back
disease, injury, or disorder in service or within one year of
service discharge. Additionally, the veteran denied back
symptom history and complaints on service discharge
examination, and his spine was clinically normal then.
Furthermore, while he was diagnosed with lumbosacral spine
degenerative joint disease on VA examination in February
2001, no competent evidence relates any current low back
disability to service. In light of the above, service
connection is not warranted.
Disability evaluations
Disability ratings are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155. 38 C.F.R. Part 4
contains the rating schedule.
In Fenderson v. West, 12 Vet. App. 119 (1999), the U.S. Court
of Appeals for Veterans Claims (Court) held that evidence to
be considered in the appeal of an initial assignment of a
rating disability was not limited to that reflecting the then
current severity of the disorder. In that decision, the
Court also discussed the concept of the "staging" of
ratings, finding that, in cases where an initially assigned
disability evaluation has been disagreed with, it was
possible for a veteran to be awarded separate percentage
evaluations for separate periods based on the facts found
during the appeal period (as in this case). Id. at 126.
Initial rating, headaches, dizziness, and memory loss,
residuals of head injury
The veteran appealed the RO's January 2000 decision assigning
an initial 10 percent rating for headaches, dizziness, and
memory loss, residuals of head injury.
This disability is rated under 38 C.F.R. Part 4, Diagnostic
Code 8045-9304. DC 8045 limits the assignable rating for
purely subjective complaints such as headaches, dizziness,
insomnia, etc., recognized as symptomatic of brain trauma, to
10 percent, under DC 9304, unless there is a diagnosis of
multi-infarct dementia associated with brain trauma. The
disability must be rated under DC 9304, as required by DC
8045. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en
banc). There are a number of psychiatric and neurology
examination or consultation reports of record, none of which
contains a diagnosis of multi-infarct dementia associated
with brain trauma. Since there is no diagnosis of multi-
infarct dementia, a higher rating cannot be assigned for
purely subjective complaints. The Board concludes that the
disability has not significantly changed during the rating
period and that a uniform rating is warranted. See Fenderson
v. West, 12 Vet. App. 119 (1999).
Initial rating, seizures, residuals of head injury
The veteran appealed the RO's January 2000 decision assigning
an initial 20 percent rating for seizures residuals of head
injury. The RO assigned a December 1994 effective date. In
January 2005, the RO changed the initial rating to 60
percent, effective from December 1994.
Under the General Rating Formula for Major and Minor
Epileptic Seizures, 38 C.F.R. § 4.124a, an 80 percent rating
is assigned when there is an average of at least 1 major
seizure in 4 months over the last year, or 9-10 minor
seizures per week. A 100 percent rating is assigned when
there is an average of at least 1 major seizure per month
over the last year.
In determining the frequency of seizures, competent
consistent lay testimony emphasizing convulsive and immediate
post-convulsive characteristics may be accepted.
38 C.F.R. § 4.121. A major seizure is characterized by the
generalized tonic-clonic convulsion with unconsciousness. A
minor seizure consists of a brief interruption in
consciousness or conscious control associated with staring or
rhythmic blinking of the eyes or nodding of the head
("pure" petit mal), or sudden jerking movements of the
arms, trunk, or head (myoclonic type) or sudden loss of
postural control (akinetic type). 38 C.F.R. § 4.124a, NOTES
(1) and (2) following DC 8911.
Based on the evidence, the Board concludes that a rating
higher than 60 percent is not warranted and that a uniform
rating is warranted as the degree of disability has not
significantly changed during the rating period. See
Fenderson v. West, 12 Vet. App. 119 (1999).
In April 1996, the veteran reported that he hade had a
seizure in March 1996. In May 1996 and November 1996, the
veteran reported a few seizures since the last visit. A
February 1997 VA medical record does not indicate whether the
seizures discussed were petit mal or grand mal, although it
indicates that the veteran reported having seizures about
once or twice a month. Another February 1997 medical record
reports a few seizures since the last visit. The May 1997
medical record is substantially illegible.
An October 1997 note states that the veteran reported a few
seizures during the night since the last visit. A November
to December 1997 VA hospital discharge summary indicates that
the veteran had not taken Dilantin for a few days prior to
admission and had had a seizure. He had no seizures during
the hospitalization, which lasted 4 days.
In July 1997, it was reported that the veteran had been
seizure-free for a month. The December 1998 VA examination
reported a history of developing seizures a few months after
the 1959 injury, with a frequency of one every two months,
manifested by black-outs, falling down, and wetting himself,
followed by headaches. The examination report did not
otherwise specifically indicate how many seizures the veteran
had been having during the rating period.
In June 1999, the veteran reported that he had had a seizure
1 week beforehand. In August 1999, he reported that he had
had one the other day. And in November 1999, he reported
that he had had 3 seizures since the last appointment.
In February 2000, the veteran reported that he had had a
seizure 4 days beforehand. In March 2000, the veteran stated
that he had had no seizures since February 2000. In July
2000, the veteran reported that he had had no recent seizure
activity.
On VA examination in February 2001, the veteran reported a
history of convulsions at the present time. To another
February 2001 examiner, he reported a seizure treated 2 weeks
beforehand, and a few petit mal seizures since that time, and
that he usually had seizures once or twice a month.
In March 2001, the veteran reported that he had had a grand
mal seizure about a month beforehand. In October 2001, the
veteran reported that he seldom has seizures now.
During the veteran's December 2001 hearing, he testified that
there are grand mal and petit mal seizures, and that he had
petit mal seizures quite often. He stated that he had petit
mal seizures several or six times a month. Then he said he
would have at least 3 or 4 every week. Later, he indicated
that petit mal seizures averaged 3 or 4 or 6 a week. He
stated that with medication, grand mal seizures would happen
every 2 or 3 months. Transcript at 14-15, 18-19. Although
the veteran's estimates about the number of petit mal
seizures he has very, none are high enough to support
assignment of a higher rating, and his descriptions are not
adequate to support a conclusion that he has major seizures
of a frequency that would support assignment of a higher
rating. 38 C.F.R. § 4.121; DC 8911.
In June 2002, the veteran reported that his last seizure was
about a month beforehand. In September 2002, the veteran
indicated that since his last visit, he had had approximately
3 episodes of "spells". There was not a loss of
consciousness with any of these.
A January 2003 record notes reports of seizures once or twice
a month. Instead of tonic-clonic convulsions, however, mere
intense grasping was reported. Thus, these are not shown to
have been grand mal seizures. NOTE (1) following DC 8911.
Later in January 2003, the veteran denied having any seizures
in the past month, and in February 2003, he voiced no
complaints and reported that he had not had a seizure since
December 2002.
In April 2003, the veteran reported to a nurse that he had
had one petit mal and one grand mal the day before. A
neurologist specified that there had been 2 generalized motor
seizures and 2 of what the veteran described as petit mal
seizures the day before. The characterization of the first 2
mentioned does not place them in the category of grand mal
seizures as defined by NOTE (1) following DC 8911 because
convulsions were not reported. Similarly, the veteran's June
2003 report of a grand mal seizure in early June 2003 does
not describe a grand mal seizure as defined. His September
2003 report was that his last seizure was in July 2003.
In January 2004, the veteran reported that he had had a
couple of minor seizures but no grand mal episodes, and in
March 2004, he reported that he had had no seizures since the
last visit. Furthermore, in April 2004, he reported that his
medications had been switched and that his seizures were
under control. In September 2004, he reported no seizures so
far.
Despite all the evidence of seizures, there is no acceptable
evidence that the veteran has had an average of at least 1
major seizure in 4 months over the last year during any part
of the rating period. They have not been diagnosed, and the
veteran has reported them, but he has not given sufficient
information, in reporting them, for the Board to conclude
that he has major seizures, as described in NOTE (1)
following DC 8911. What is left for analysis, then, is
whether the evidence shows that the veteran has had at least
9-10 minor seizures per week. The evidence does not show
that he has. All of the history that has been reported
preponderates in favor of a finding that the veteran has less
than 9 minor seizures per week. Both his estimates in his
hearing, and the reports of the occurrences and frequencies
of seizures that are contained in the medical records, are an
indication that he does not have 9 or more minor seizures per
week.
The Board has reviewed the rating schedule and finds that DC
8045-8911 is most appropriate, as DC 8045 provides that
seizures are rated under the diagnostic code specifically
dealing with seizures, which is DC 8911.
As concerns the matter of whether referral for an
extraschedular rating would be appropriate, the Board notes
that the veteran stated in November 2000 that seizures and
headaches caused him to leave his last job. However, he
testified in December 2001 that his last job was in 1982 or
1983, which was well before the rating period. He also
testified that the reason he felt that he could not work full
time was his memory and depression, not seizures, and his
seizures are already rated as 60 percent disabling, which is
in itself recognition that they are substantially disabling.
Moreover, the veteran has been assigned a TDIU rating, in
large part due to his seizure disorder, effective from
December 1994. Under the circumstances, the Board concludes
that the service-connected seizure disability itself does not
present such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1).
Left pubic bone fracture
The RO increased the evaluation for the veteran's fracture,
left pubic bone, from 10 percent, to 20 percent, under DC
5010-5255, in a September 2001 rating decision, effective
from September 1, 2000. The veteran appealed both the
effective date and the percentage evaluation assigned.
Diagnostic Code 5010 is for traumatic arthritis, which is
rated as degenerative arthritis based on limitation of
motion. See DC 5003. DC 5255 is for femur impairment.
Femur malunion with marked knee or hip disability warrants a
30 percent rating. The 2001 examination indicated that the
veteran had left hip flexion to 100 degrees, abduction to 20
degrees, and moderate functional limitation or loss due to
pain. No joint or muscle disorders were noted. With
consideration of 38 C.F.R. §§ 4.40, 4.45 (2006), no more than
moderate hip disability is shown. The veteran uses a cane
but has no joint or muscle disorders and he has a fairly good
range of motion and only moderate functional limitation or
loss due to pain. DC 5255 appears to be the best code for
rating this disorder. See Butts. No basis for referral of
this disability for extraschedular consideration has been
raised. See 38 C.F.R. § 3.321(b)(2).
The Court has held, concerning effective dates, that 38
U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are
applicable only where an increase in disability precedes a
claim for an increased disability rating; otherwise the
general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper
v. Brown, 10 Vet. App. 125, 126 (1997). Thus, three possible
dates may be assigned depending on the facts of the case:
(1) if an increase in disability occurs after the claim is
filed, the date that the increase is shown to have occurred
(date entitlement arose) (38 C.F.R. § 3.400(o)(1));
(2) if an increase in disability precedes the claim by a year
or less, the date that the increase is shown to have occurred
(factually ascertainable) (38 C.F.R. § 3.400(o)(2));
(3) if an increase in disability precedes the claim by more
than a year, the date that the claim is received (date of
claim) (38 C.F.R. § 3.400(o)(2)).
Harper, 10 Vet. App. at 126. Thus, determining an
appropriate effective date for an increased rating under the
effective date regulations involves an analysis of the
evidence to determine (1) when a claim for an increased
rating was received and, if possible, (2) when the increase
in disability actually occurred. 38 C.F.R. §§ 3.155,
3.400(o)(2) (2006).
The effective date for the 20 percent rating for the left
pubic fracture residuals should be no earlier than September
1, 2000. That is when the claim for increase was filed.
Additionally, it is not factually ascertainable that the
increase in severity occurred within the year before the
claim was filed. There are medical records dated within the
year prior to the date the claim was received, but they do
not pertain to the left pubic fracture residuals.
Furthermore, no other evidence shows that there was an
increase in the degree of disability within the year before
the claim was filed. Additionally, the veteran did not
appeal the last prior rating decision in November 1994,
denying a higher rating than 10 percent, so that decision
became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.
Effective date for service connection for seizures, residuals
of head injury; and for headaches with memory loss and
dizziness, residuals of head injury
An effective date prior to December 5, 1994 for service
connection for these disorders is not warranted. The veteran
had claimed service connection for concussion in November
1972. That claim was denied in February 1973, notice was
given, and the veteran did not appeal. He applied to reopen
in April 1979, this time reporting convulsions as well. The
RO denied service connection for concussion and convulsions
in October 1979 and notified the veteran of his appeal rights
also at that time. The veteran applied to reopen in July
1983. In November 1986, the RO held that new and material
evidence had not been received to reopen service connection
for seizures. The veteran perfected an appeal of that
decision, but the Board denied service connection for seizure
disorder in May 1989. The veteran applied to reopen in July
1991, but the RO denied the claim for seizures in October
1991 and notified the veteran of his appeal rights in
November 1991. The veteran applied to reopen again in
October 1993; in April 1994, the RO denied service connection
for seizures and notified the veteran of its decision and of
his right to appeal. Since the veteran did not appeal the
October 1979 and April 1994 RO decisions, they became final.
38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2006).
Nothing between the final October 1979 denial of service
connection for concussion, the April 1994 denial of service
connection for seizures, and the December 5, 1994 claim for
service connection for seizure disorder can be considered as
a claim for service connection for residuals of head injury.
An informal claim is a communication or action indicating an
intent to apply for a benefit and it must identify the
benefit sought. 38 C.F.R. § 3.155 (2006). Since the next
claim for service connection for residuals of head injury
after those final decisions was not received prior to
December 5, 1994, an earlier effective date than December 5,
1994 is not warranted for service connection for the head
injury residuals. In a reopened claim, the effective date is
to be the later of the date entitlement arose or the date of
receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.
TDIU and Chapter 35 effective dates
The RO granted a TDIU and Chapter 35 benefits eligibility
effective from December 5, 1994 in a January 2005 rating
decision, and the veteran appealed the effective date
decisions. The TDIU rating, and the Chapter 35 eligibility,
were based in large part on the disability due to the
service-connected seizure disorder; the effective date of
service connection for that disability, as discussed above,
is no earlier than the December 5, 1994 claim. A claim for
TDIU had not been received before then. Under Roberson v.
West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), once a veteran
submits evidence of a medical disability and makes a claim
for the highest rating possible, and additionally submits
evidence of unemployability, the "identify the benefit
sought" requirement of 38 C.F.R. § 3.155(a) (2006) is met
and VA must consider TDIU. Eligibility under
38 C.F.R. § 4.16 (2006) for a TDIU prior to December 5, 1994
is not shown. Before December 5, 1994, the only
service-connected disability was fracture, left pubic bone,
rated as 10 percent disabling and there had been finality of
that decision. The explanation for why an effective date
prior to December 5, 1994 for service connection for seizure
disorder is not warranted was explained above. Since there
is not an earlier effective date for the 60 percent rating
for seizure disorder, there can not be an earlier effective
date than December 5, 1994 for the grant of the TDIU.
Moreover, the Chapter 35 benefits were granted because a TDIU
was granted. Eligibility for Chapter 35 benefits is
dependent upon there being total disability permanent in
nature resulting from service-connected disability.
38 U.S.C.A. § 3501(a) (West 2002). Since the TDIU effective
date is December 5, 1994, an earlier effective date is not
warranted for Chapter 35 benefits.
The preponderance of the evidence is against the claims and
there is no doubt to be resolved. 38 U.S.C.A. § 5107;
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991).
VA's duties to notify and assist
VA has satisfied its duty to notify. The RO provided the
requisite notification in November 2002, July 2004, and July
2005 letters. The Board acknowledges that notice should be
given before the initial adjudications. In this case,
however, the unfavorable RO decisions on the matters of
earlier effective dates for service connection and higher
initial ratings for seizures and headaches were already
decided - and appealed -- by the time the current section
5103(a) notice requirement was enacted in November 2000. The
Court acknowledged in Pelegrini v. Principi, 18 Vet. App.
112, at 120 (2004), that where, as here, the section 5103(a)
notice was not mandated at the time of the initial RO
decision, the RO did not err in not providing such notice.
Rather, the appellant has the right to content-complying
notice and proper subsequent VA process, which he has
received in this case. Notice was provided before the last
supplemental statement of the case. The veteran did not
receive all necessary notice prior to the October 2001
initial adjudications of the claims for service connection
for lumbosacral strain or an increased rating for left pubic
bone fracture or an effective date prior to September 1, 2000
for the 20 percent evaluation; nor did he receive all
necessary notice prior to the January 2005 initial TDIU and
Chapter 35 benefits effective date adjudications. However,
the lack of such a pre-decision notice is not prejudicial.
Notice was provided prior to the last RO adjudication.
The claimant has been provided with every opportunity to
submit evidence and argument in support of the claim and to
respond to VA notices. There is no alleged or actual
prejudice regarding the timing of the notification.
The veteran was notified of effective dates and degrees of
disability in February 2001, July 2004, December 2004,
January 2005, and March and May 2006. See Dingess v.
Nicholson, 19 Vet. App. 473 (2006). The new notice
requirements were not in effect at the time of the January
2000 decision. While the notice was after most of the
initial adjudications, all notice and assistance deficiencies
concerning effective date and degree of disability were cured
because the veteran was given an opportunity to submit
evidence after the required notice and there were subsequent
adjudications as late as May 2006 at the RO. Any
deficiencies in VA's duties to notify the claimant concerning
effective date or degree of disability for the service
connection claim is harmless, as service connection has been
denied.
VA also has a duty to assist the claimant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A. In this case, VA obtained service medical records,
VA medical records, VA examination reports, SSA records, and
lay statements including hearing testimony. VA has made
reasonable attempt to obtain all relevant evidence that it is
aware of and which the veteran has authorized it to obtain.
Concerning VA records, there is no allegation of an increase
in the severity of the pubic fracture, headaches, and
seizures since the most recent VA medical records contained
in the file, dating until January 2005. Concerning the low
back disability claim, there is no satisfactory evidence of a
relevant event, injury or disease in service, or of arthritis
manifesting during the initial post-service year. The
provisions of 38 C.F.R. § 3.159 do not require examinations
for the effective date appeals. VA has satisfied its
assistance duties.
ORDER
Service connection for lumbosacral strain is denied.
A higher initial rating for headaches, dizziness, and memory
loss, residuals of head injury, is denied.
A higher initial rating for seizures, residuals of head
injury, is denied.
A higher rating for fracture, left pubic bone, is denied.
An effective date prior to September 1, 2000 for a 20 percent
rating for fracture, left pubic bone, is denied.
An effective date prior to December 5, 1994 for service
connection for seizures, residuals of head injury, is denied.
An effective date prior to December 5, 1994 for service
connection for headaches, dizziness, and memory loss,
residuals of head injury, is denied.
An effective date prior to December 5, 1994 for a TDIU is
denied.
An effective date prior to December 5, 1994 for Chapter 35
benefits eligibility is denied.
REMAND
The veteran appealed the RO's September 2001 denial of
service connection for dysthymic disorder claimed as
depression. In the September 2001 decision, the RO decided
the claim on the merits and did not mention any prior
decisions. However, there had been a prior Board decision in
1989 denying service connection for psychiatric disorder.
The Board notes that the RO did not provide the veteran with
the notice required by Kent v. Nicholson, 20 Vet. App. 1
(2006), and that it did not consider whether new and material
evidence has been received to reopen the claim. Due process
requires that the case be returned to the RO for such action.
Accordingly, the case is REMANDED for the following action:
1. Comply with the Kent decision
concerning the veteran's application to
reopen a claim for service connection
for dysthymic disorder. As the claim
to reopen was filed before August 29,
2001, advise the veteran of old
38 C.F.R. § 3.156 (2001) and of what
evidence is necessary to reopen his
claim in light of the Board's May 1989
decision.
2. Thereafter, the RO should again
consider the veteran's pending claims in
light of any additional evidence added to
the record. If the benefits sought on
appeal remain denied, the veteran and his
representative should be furnished a
Supplemental Statement of the and given
the opportunity to respond thereto. The
matter of whether new and material
evidence has been received to reopen the
claim for service connection for
dysthymic disorder should be addressed,
with consideration of OLD
38 C.F.R. § 3.156 (2001).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs